ALJDEC decisions subject to certification as final

2012A-2526-ROC · Registrar of Contractors · 2012-11-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 8, 2012 APPEARANCES: Complainant Marin Concrete Inc appeared through Fred Marin, President. Respondent Butler Developments LLC was represented by Eduardo H. Coronado, Esq., Coronado Law Firm, PLLC. ADMINISTRATIVE LAW JUDGE: Tammy Eigenheer _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Butler Developments LLC (Respondent) is the holder of License No. B.207318-R issued by the Registrar of Contractors. 2. Marin Concrete (Complainant) filed a Complaint against Respondent with the Registrar of Contractors alleging that Respondent had failed to pay Complainant the sum of $11,269.27 for construction work that Complainant allegedly performed as a subcontractor for Respondent on two different projects. One project was located at a model home in the Pine Haven subdivision in Show Low, Arizona (Pine Haven project). The second project was located at 4600 W. Acer Lane, Show Low, Arizona (Torreon project). 3. The parties were unable to resolve their differences and Complainant requested an administrative hearing. The Registrar of Contractors then issued a formal Citation and Complaint charging Respondent with a possible violation of A.R.S. § 32-1154(A)(11). The Pine Haven Project 4. Fred Marin, President of Complainant, testified that Complainant was contracted to perform work on the Pine Haven project for a total contract price of $8,400.00. Mr. Marin stated that Complainant attempted to perform the work on a Saturday, but admitted that the work was not completed in a satisfactory manner due to high winds when the concrete driveway was poured. Mr. Marin testified that he informed Dustin Butler, the owner of Respondent, that he would return the following Monday to tear out the concrete and repour the driveway. Mr. Marin did not return that Monday to repair the driveway. 5. Mr. Butler attempted to contact Mr. Marin on numerous occasions on the Monday and Tuesday following Complainant’s unsatisfactory pour to ensure that the driveway was completed within the project’s deadlines. When Mr. Butler was unable to speak to Mr. Marin, Respondent hired an alternative contractor to repair and complete the project on the following Wednesday. 6. Mr. Butler testified that he paid Complainant $4,000.00 on the contract prior to any work being performed. Mr. Butler also stated he paid the second contractor $4,500.00 to repair and complete the project. The Torreon Project 7. Complainant contracted with Respondent to perform the following work at the Torreon project: Furnish and install approx. 304 1/ft of stem wall. Furnish and install approx. 27 piers. (interior and porch piers). Pour approx 576 sq/ft of concrete with reinforcement and P.S.I. according to plans. Interior of stem wall is to be clean and level. Exterior of stem wall is to be back filled with proper fall and level Install cinder sand (not rock) under entire main floor at least 4” thick. Marin Concrete will supply labor and material. Piers to be strip footings one way tying into exterior footings. Stem wall is to be completed per plan Cinder block must be split face Maintain 36” of crawl space under home. All piers and block under home or under back fill level can be regular block.

The total contract was for $16,948.80.

8. Mr. Marin testified that Complainant was performing work on the Torreon project when Respondent took over those portions of the contract left to be completed. Mr. Marin stated that Complainant was not allowed to complete the work as agreed. 9. Mr. Butler testified that Complainant was not performing the work on the Torreon project in a satisfactory manner and that Respondent was forced to correct Complainant’s errors. 10. Christopher Thomas, an employee of Respondent, testified that it took approximately three days and 60 man-hours to fix the backfill and cinder sand that Complainant had not completed in accordance with the contract. 11. Complainant was paid a total of $15,279.52 on the Torreon project. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. A.R.S. § 32-1154(A)(11) includes among the grounds for disciplinary action against a contractor’s license, failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. 4. Complainant established the existence of a contract with respect to the Pine Haven project. However, Complainant did not establish that it completed the contact in a professional and workmanlike manner. 5. Respondent established that a commercial exigency required it to hire an alternative contractor to repair and complete the concrete work at the Pine Haven project. 6. Complainant established the existence of a contract with respect to the Torreon project. However, Complainant's failure to perform the contract in a professional and workmanlike manner excused total payment on the contract. 7. Complainant failed to sustain the requisite burden of proving the existence of a valid liquidated debt properly due and owing by Respondent and thus, has not sustained the burden of proving that Respondent violated the charged provision of A.R.S. § 32-1154(A)(11). RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar of Contractors’ Order, this Citation, together with the Complaint upon which it is based, be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, November 28, 2012.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826